Judge says earlier fans are able to stay

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The judge in an Environment Court hearing in Blenheim yesterday warned that any changes to rules governing the placement of frost fans would not apply to fans installed before September 2009.

Judge Jon Jackson was speaking on the final day of a two-day Environment Court hearing of the appeal by the New Zealand Winegrowers Association against proposed changes to the Marlborough District Council's Wairau/Awatere resource management plan. The changes restrict noise levels to 55 decibels within 300 metres of the machines.

Judge Jackson told Waihopai resident Michael Hyson, who submitted against the appeal, not to get his hopes up.

"I have bad news for you. If there were 1000 fans in 2009, all of those can be replaced by cheap and cheerful ones, even under the new laws," he said.

During opening arguments on Tuesday, council lawyer Stephen Quinn said the changes to the plan were made in response to an increase in public complaints about frost fan noise.

The council's plan was designed to balance the interests of the public with the winegrowers, he said.

Mr Quinn said other changes include penalties for fans that produced special audible characteristics, slapping and humming sounds, which create pressure on the ear drum and can cause discomfort similar to having an open window in a moving car.

Winegrowers association lawyer Marija Batistich said the proposed changes to the resource management plan were more restrictive than any other plan in the country. She said it would not be possible to comply with the new rules as there were no frost fans on the market that could constantly operate under the decibel threshold.

Yesterday, the winegrowers association acoustic expert Rob Hay said measuring special audible characteristics required experts to make value judgments that led to ambiguity and inconsistency around the enforcement of rules. He said that in his experience when experts used subjective tests to measure the characteristics, they came to different conclusions.

Mr Quinn said that one report had shown 93 per cent correlation between the experts.

Mr Hay said although you may never get 100 per cent agreement in a test, you should expect narrow agreement between experts.

Mr Quinn said a report showed there was at least one type of fan on the market that could adhere to the standard.

Mr Hay said he understood that the author of the report believed that to be the case but he thought there were other methods available to test for special audible characteristics which the author did not use.

However, Mr Hay later said he agreed that two models of fan complied with the rule, but only under specific speeds and in certain areas.

After the hearing, council environmental health officer Gina Ferguson said frost fans installed before September 2009 could be replaced by machines that adhered to the previous regulatory regime. However, the owner would have to provide evidence that it was the same scale and intensity as the one it was replacing.

Fairhall resident Malcolm Maclean, who gave evidence for the council, said: "We are not doing this for ourselves. This is for the benefit of our children and grandchildren."